Further Reading

Verizon sued to block rules issued in 2010, and won when a federal appeals court said in January 2014 that the FCC erred by imposing per se common carrier regulations on broadband providers, which the FCC had never classified as common carriers. The latest net neutrality order, passed yesterday, fixes that, Wheeler said in a press conference after the vote.

"The DC Circuit sent the previous Open Internet Order back to us and basically said, 'hey, you're trying to impose common carrier-like regulation without stepping up and saying, 'these are common carriers,'" Wheeler said yesterday. "We have addressed that issue, that is the underlying issue, that is the sine qua non of the all the debates we've had so far. That gives me great confidence going forward."

The court essentially gave the FCC two options: Use the same Section 706 authority the 2010 order used, while issuing weaker rules. Or put the same or even stronger rules back in place by reclassifying broadband as a common carrier service under Title II of the Communications Act. Wheeler initially opted for the Section 706 route, saying it provided the fastest path to enforceable net neutrality rules, but changed his mind after a year of receiving input from the public.

He explained last month that the "commercially reasonable" test his initial proposal used to determine whether Internet service provider behavior was appropriate could be too easily interpreted to mean "what is reasonable for the ISPs, not what is reasonable for consumers or innovators." Title II imposes a stronger standard of "unjust or unreasonable discrimination."

Republican commissioner Ajit Pai claimed that the FCC's net neutrality order "imposes intrusive government regulations that won’t work to solve a problem that doesn’t exist using legal authority the FCC doesn’t have."

But Wheeler pointed out that mobile voice has been classified under Title II for more than two decades, and that the cellular industry supported the rules with forbearance from more intrusive regulations that apply to wireline telephone service. Wheeler represented the wireless industry in those proceedings when he was CEO of the Cellular Telecommunications & Internet Association.

For broadband, Wheeler is imposing fewer provisions of Title II than the FCC imposed on mobile voice, he said. If Internet service providers sue, as they have threatened to do, it will be difficult for them to get a stay that would prevent the FCC from implementing the rules immediately, he said. That's because the industry has claimed to support the general principles of net neutrality, while saying they oppose the use of Title II to enforce it.

"I think it's going to be hard for them to get a stay to put off the implementation of the rules," Wheeler told reporters. "There are three actionable, specific bright-line rules here: no blocking, no throttling, and no prioritized fast lanes. They've all said, 'we never intend to do that.' So they're gong to go into court now and say, 'no, court, you need to stay this because we intend to block, we intend to throttle, we intend to have fast lanes'? And so I think a stay is a high hurdle."

Entities that could sue the FCC include Comcast, AT&T, Verizon, and the National Cable & Telecommunications Association. The companies object to Title II rules that allow the commission to judge consumer complaints over whether service plans cost too much, or intervene in network interconnection disputes like the one Netflix fought against ISPs last year.

The rules also allow the FCC to judge whether specific data caps harm consumers or competitors, and include a general standard on which to judge whether unforeseen ISP behavior harms consumers or Web services providers.

The FCC intends to enforce a Title II rule that guarantees access to poles, conduits, and other infrastructure controlled by utilities, making it easier for ISPs to enter new markets. Cable companies complained that they might have to pay higher pole attachment rates to utilities under the new regime, but an FCC official said yesterday that won't be allowed. "If the commission sees utilities attempting to use this decision today as an excuse to impose some new rate, the commission can and the commission will take definitive action," said FCC Wireline Competition Bureau Deputy Chief Matthew DelNero.

The full net neutrality order has not been published yet. The FCC's majority is required to include the Republicans' dissents in the order and "be responsive to those dissents," Wheeler said. The order will go on the FCC's website after that process. The rules will go into effect 60 days after publication in the Federal Register, with one small exception. Enhancements to the transparency rule must undergo an additional review by the Office of Management and Budget to comply with the Paperwork Reduction Act.